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Message-ID: <3d4032300803050856p24d8b714wfca54e48983f2bdb@mail.gmail.com>
Date: Wed, 5 Mar 2008 11:56:06 -0500
From: "Sam Ruby" <rubys@intertwingly.net>
Sender: sa3ruby@gmail.com
To: "Joe Schaefer" <joe_schaefer@yahoo.com>
Subject: Re: fair use (was Re: What licenses in category X satisfy criterion
 #2?)
Cc: legal-discuss@apache.org
In-Reply-To: <953142.47221.qm@web54409.mail.yahoo.com>
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References: <3d4032300803050757p2de06ea1r6937830fccb8ca47@mail.gmail.com>
	 <953142.47221.qm@web54409.mail.yahoo.com>

On Wed, Mar 5, 2008 at 11:39 AM, Joe Schaefer <joe_schaefer@yahoo.com> wrote:
>
>  --- Sam Ruby <rubys@intertwingly.net> wrote:
>
>  > On Wed, Mar 5, 2008 at 10:37 AM, Joe Schaefer
>  > <joe_schaefer@yahoo.com> wrote:
>  > >
>
> > >  I will repeat my statement that a license
>  > >  is not the arbiter of what is or is not a
>  > >  derivative
>  > >  work.  The question to me is whether or not
>  > >  writing
>  > >  some glue code to interface with some 3rd party
>  > >  GPL'd code qualifies as fair use, and is
>  > >  therefore
>  > >  not considered by the courts as a derivative
>  > >  work.
>  > >
>  > >  I believe this is in fact the case, but would
>  > >  appreciate it if someone skilled in these matters
>  > >  would offer an opinion here.
>
>  [...]
>
>
>  > Sometimes our downloads do not include code from
>  > third parties.  That
>  > may free us from obligation, but it is important to
>  > realize that it is
>  > our intention to enable licensees of our code (this
>  > would be the
>  > "second" parties involved in this third party
>  > discussion) to do with
>  > as they please -- limited only by the the terms and
>  > conditions
>  > specified in our license.
>
>  So there are two issues as far as copyright goes then,
>
>  1) what is the licensing on the tarball we distribute,
>  2) what is the licensing on the executable that the
>    user (ie second party) actually runs?

Yes for 1.

On #2, it is important to realize that our licensees may not actually
run the code themselves, but may sublicense our code for distribution
to fourth parties.

>  For dependencies on optional works that we do not
>  distribute, I don't think the ASF should be in the
>  businesss of policing what a user selects for
>  his/her preferred runtime.  The current policy
>  does try to say that somewhere, but then seems
>  to back-peddle when discussing GPL stuff.

Agreed.  But it is worth noting that the term "optional" is harder to
pin down than you might think.

A hadoop startup script is hardly optional, but is readily replaced.

Everything we produce is "soft" ware, so a developer with enough
motivation could replace *any* dependency that we might create.

ServiceMix providing a plugin for JBoss clearly is OK.

Where you draw the line, how you draw the line, and who gets to draw
the line: these are questions where reasonable people differ.

- Sam Ruby

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